Preparing an employment tribunal case
This information applies to Scotland only
At the beginning of preparing your case you may have some basic questions that are not covered here. This is because your case may have some individual points that are specific to you. The Employment Tribunal Customer Contact Centre can provide answers to queries, and explain how the employment tribunal system works. They don't give legal advice. You can also find out information about the employment tribunal service on their website.
Telephone: 0300 790 6234
Textphone 18001 0300 790 6234
If you've got a problem at work that you can't sort out, you may be able to make a claim to an employment tribunal.
This page tells you what you need to do to get your case ready for the employment tribunal hearing.
A large amount of work goes into preparing a case for the employment tribunal. This preparation is very important. If you have a representative, they will do most of the work in preparing your case. Sometimes they will ask you to do certain things or provide information. It's important that you follow their instructions.
Make sure you've given all the information you have to your representative. Don’t hold anything back. If you remember something later that you haven’t mentioned before, make sure you tell your representative about this as soon as you can.
If you don't have a representative, you might be able to get advice on your case preparation. An experienced adviser, for example at a Citizens Advice Bureau, may be able to help you with some of the preparation - where to get advice.
To find out more about making a claim to an employment tribunal, see Understanding employment tribunals.
There may be other ways of sorting out your problem than making a claim to an employment tribunal.
When you're preparing your employment tribunal case, you should think about what you need the tribunal to know. This is mainly telling your story of what happened to the tribunal.
First step - gather evidence
- write everything down at the time it happens if you can
- keep a diary at work.
As there's a legal test for whether the tribunal believes your story, you will need to take all the evidence you can. If you haven't already done so, try to write down everything that happened in relation to your problem. As it could be a long time before your tribunal hearing, making a written account now of what happened can help keep things clear in your mind. It can also be useful for filling in the tribunal complaint form. If you kept a diary of what happened at work, this can also be helpful and may be important evidence in the hearing. If you have an adviser or representative, give them your written account of what happened.
Second step - put the paperwork together
Getting all the paperwork together is also important. You should get together:
- anything you've written down about what's happened
- your contract, if you've got one, and any other documents about your employment like pay slips or salary details
- any letters, emails and mobile phone texts from your employer or any other people you work with about the situation
- a list of possible witnesses
- bring any evidence that you've been applying for other jobs if your case includes a claim for loss of earnings for the period since your dismissal. This shows you have been trying to reduce the potential financial claim you might have against the employer
- details of any salary you currently receive from a new job. This figure may be needed to calculate your claim against your previous employers
- anything else that concerns your employment.
If you are not sure if a document or email is important keep it with your papers in case. Show it all to your adviser or representative if you have one. Don't write any comments on these documents, as they may have to be photocopied for the tribunal. If you want to make notes or comments, do this on a separate piece of paper.
Third step - file your paperwork in date order
If you're preparing your own case you should set up a file and keep everything in date order. There can be lots of paperwork involved in a case. It's easy to get into a muddle if you don’t have a system for keeping your papers in order.
Often your employer will bring the relevant papers too, because they should have these, including those that are internal to the organisation. You may need to speak with your employer or their representative before the hearing to agree who's bringing different papers, and who's going to produce them. This is known as sorting out the ‘Inventory of Productions’. These papers may also be referred to as 'bundles'.
Sometimes the employment tribunal will give directions or orders. These are instructions about what should happen in the case, to make sure things are happening properly and on time. For example, there might be directions about deadlines for when you and your employer have to send each other witness statements or other documents. Treat directions and orders from the tribunal seriously as there may be problems if you don't do what's instructed.
Always read any letters from the tribunal carefully. If you're not sure what the tribunal is saying, get advice from your adviser or representative, or call the employment tribunal customer contact centre. If you have a representative, they should make sure that directions and orders from the tribunal are carried out.
The Inventory of Productions is the file of documents that the tribunal will need to look at during the hearing. These documents are the evidence in your case. They may also be referred to as 'bundles'. Often your employer will produce them, partly because they should have all the documents that need to be in it, for example, discussions at work that had formal minutes drawn up for agreement. If you have a case management discussion, you may want to ask for an order for your employer to produce all the papers. Information is available below about a case management discussion.
You usually need to agree with your employer what documents should be put in the Inventory of Productions. There can be disagreements about this. If so, two inventories may be produced – one by you and one by your employer. Tribunals don’t like this because it can make following the evidence difficult, so try to agree documents with your employer if you can.
If you have a representative, they will produce the Inventory of Productions if they need to. If you don't have a representative and you need to produce it, you should include in it all the documents that are important to your case, and that you want to refer to at the hearing. There is a standard way that the Inventory of Productions should be put together.
If you don't have a representative helping you, there may be an organisation which can give you advice on what should be in it.
For details of organisations that might be able to help, see What help can I get with a problem at work.
If you're producing the Inventory of Productions, you need six copies - one for each member of the tribunal panel, one for the employer, one for you and one for the witnesses.
The employment tribunal will want to hear evidence from you and any other witnesses on your behalf. Normally the hearing will take evidence from you and any witnesses by each side asking you questions then cross examination by each side if required. It may order you or your witnesses to make a written statement.
For more information about cross-examination, see Employment tribunal hearings.
Can I ask work colleagues to be witnesses?
You can ask work colleagues to be witnesses, but make sure the person you're asking has something relevant to say. For example, if they witnessed what happened leading up to your dismissal, their evidence may be useful if the employer claims that something different happened. Don't take a character witness. The tribunal wants to know about what happened, not about whether you're a nice person.
Make sure that anyone you ask to be a witness can come to the hearing.
Getting witnesses to attend a tribunal can be difficult, particularly if they still work for the employer. Witnesses often promise to come but then get cold feet before the hearing and don’t turn up. It is possible to get an order from the tribunal to make a witness attend the hearing.
If you have an adviser or representative, they can help you with this, or you can call the employment tribunal customer contact centre to ask how to do this.
Don't think that a case is won or lost by the number of witnesses each side has. It is quite normal for the employee to have no witnesses and the employer to have many. The number of witnesses is not relevant to the outcome and many employees win their case without having any witnesses on their side.
You might have a case management discussion or a pre-hearing review as part of the preparation of your case.
A case management discussion is an informal hearing before your main hearing. It might be done in person, or over the phone. Both you and your employer, or your representatives, and the tribunal judge attend a case management discussion.
A case management discussion will decide on how the case should be run, and what the timetable for the case should be. They are often held in more complicated cases like discrimination cases. A case management discussion will decide things like:
- what the issues in the case are
- what orders should be made about documents and witnesses
- how long the full hearing should be, and when it should happen.
A pre-hearing review is a shorter hearing before your main hearing happens. The tribunal might decide there will be a pre-hearing review, or you or your employer can ask for one as part of the case preparation.
At the pre-hearing review there will usually be the tribunal judge, with you and your employer, or your representatives. It will decide things like:
- whether part of your or your employer's case is to be struck out. This means that if the judge feels that part of the case is weak, they won't allow it to continue
- making a decision about any crucial issues to your case, that would mean you wouldn't be able to continue if they weren't proved. For example, this might be proving that you have a disability in a disability discrimination case.
In a few cases the tribunal might say that you or your employer have to pay a deposit. This would be if the tribunal feels that you or your employer's case doesn't have a reasonable chance of success. But this doesn't happen very often, and if the tribunal do this they should take into account your financial situation.
For the next steps in taking action about problems at work, see Employment tribunal hearings.